' The petition is addressed against the order of learned Additional Sub-Judge, Mirpur, passed on June 6, 1992, whereby an application for restoration of suit dismissed for default of appearance, was turned down.
2. Arshad Mahmood and others, plaintiff-petitioners brought a suit for declaration to the effect that plantiffs Nos,1 to 9 and co-defendants Nos,27 to 33, were shareholders in the firm, Pak Kashmir Maches Factory Registered Mirpur; that defendants-respondents Nos,1 to 26 have no interest whatsoever, in the firm and that the plaintiffs and co-defendants acquired proprietary rights in the said land measuring 97 Kanals 15 Marlas, situate in villages Azizpur, Barban and Khambal, Tehsil Mirpur, that fresh registration of the firm in the name of defendants Nos,2 to 26 was fake, fictitious and inoperative on the rights of the plaintiffs and that the sale-deeds executed by defendants Nos,1 to 25 in favour of defendant-respondent No,26, on September 8, 1991 and September 14, 1991, for their being without lawful authority, were ineffective and inoperative on the rights of the plaintiffs and co-defendants. The suit was instituted on October 26, 1991. All the defendants except No,26, were proceeded ex parte. Defendant No,26 contested the suit of the plaintiffs and presented the written statement on December 16, 1991. On January 16, 1992, on making ex parte order against the absent defendants, the proceedings were adjourned for framing of issues. The file was received back from the Court of District Judge on April 18, 1992. The learned counsel for the plaintiffs and defendant No,26, were present on that day. The suit was adjourned for framing of issues to May 10, 1992. On that day, the suit was called on for hearing. No one appeared on behalf of the parties, as such the suit was dismissed for want of prosecution.
3. An application for restoration of the suit was moved before the trial Court on May 23, 1992. It was explained in the application that at the time when the suit was called on for hearing, Arshad Mahmood Mir, one of the plaintiffs arrived late. The Counsel who represented the plaintiffs, was occupied in a murder trial before the District Criminal Court, Mirpur. Thus the suit was dismissed in default. In para. 3 of the application, it was stated that absence of one of the plaintiffs who prosecuted the suit, was not intentional. When the suit was called on, the plaintiff went to inform his counsel in the District Criminal Court and the suit was dismissed in his absence. The application was accompanied by an affidavit of Arshad Mahmood. The proceedings were postponed to June 6, 1992 for proper ordeRs, On that day, the application was dismissed for want of sufficient cause of absence of the plaintiff. This order has been assailed in the present petition.
4. Mr. Muhammad Yunus Surakhvi, the learned counsel for the petitioners, assailed the impugned order on the following grounds.:-
(i) That the trial Court fell in error in dismissing the suit under Order 9, Rule 8, as, in fact, the suit was liable to be dismissed under Order 17, Rule 2, C.P.C.
(ii) that the trial Court failed to provide an opportunity to the petitioners, to substantiate the grounds for restoration of the suit, by leading evidence; and-
(iii) that the impugned order was capricious. The learned counsel made reference to the authorities, PLD 1950 BJ 19, PLD 1987 AKJ 44 and an unreported case titled Muhammad Yasin v. Jan Muhammad and others, decided by the Supreme Court of Azad Jammu and Kashmir, on April 1, 1989, in support of his contentions.Ch. All Muhammad, the learned counsel for respondent No,26, controverted the aforesaid points and raised a preliminary objection to the effect that the impugned order being appealable under Order 43, Rule 1(c), C.P.C., was not subject to revision in exercise of powers under section 115 of the Code. It was elaborated that no sufficient cause was shown for absence of the plaintiff, as such, the application for restoration of the suit was rightly dismissed by the lower Court. Reference was made to CLC 1986 SC AJK 3120 and PLD 1954 BJ 53.
5. The first objection raised on behalf of the petitioners, confines to proposition of dismissal of suit under Order 9, Rule 8, C.P.C. It was emphasised that the provisions of rule 8 were attracted only on the first hearing of the suit and not thereafter. The objection is unsustainable in view of the nature of the impugned order resulting in dismissal of suit in default of appearance.
6. Rule 8, envisages the dismissal of the suit for non-appearance of the plaintiff when the suit is called on for hearing and only defendant appears in the Court. The provisions of the Rule are not attracted in different situations. In present case, the suit appears to have been dismissed on May 10, 1992 when none of the parties appeared in the Court despite the fact that the suit was called on for hearing for more than once. Thus, the provisions of Rule 8 are not squarely attracted in the present case.
7. The provisions of law relevant to the proposition under consideration are contained under Rule 2 of Order 17, C.P.C. The scheme of law laid dwn under rule 2 postulates scheme of dismissal of the suit on account of nonappearance of the parties or any one of them on the date of hearing of the suit; as (i) in the light of modes directed under Order 9 of the Code; or (ii) in such manner as the Court may think fit.
8. The scheme of Order 9, as framed by the law-makers, pertains to appearance of parties and consequences of their non-appearance, in prosecution or defence of the suit. It is already noticed elsewhere that the provisions of rule 8 of Order 9 are attracted when the defendant appears and plaintiff fails to appear when the suit is called on for hearing. Rule 3 of Order 9 provides that where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. The scheme A of rule 3 is, therefore, squarely applicable to the proposition under consideration as neither of the parties appeared in the Court when the suit was called on for hearing and the suit was dismissed for want of prosecution. When an action is taken under Rule 3 in the manner of dismissal of suit for non-prosecution, the remedy available to the plaintiff has been envisaged under Rule 4. The remedies as contemplated under Rule 4, are (i) to bring fresh suit (subject to law of limitation); or (ii) to apply for an order to set the dismissal aside by satisfying the Court that there was sufficient cause for non-appearance. The order passed under Rule 4 was, therefore, not appealable; rather it was revisable.
9. The aforesaid analysis leads to the conclusion that in case of nonappearance of plaintiff or the defendant on the date when the suit is called on for hearing, the Court is empowered to dispose of the suit in the manner as envisaged under Order 9. When an order has been passed in that manner, an aggrieved person is vested with adequate remedies provided under Rules 4 9 and 13 of Order 9. In case of dismissal of suit when the plaintiff avails the remedy under rule 4 and applies for restoration of the suit, in case of his failure, he can seek intervention of this Court in exercise of its revisional jurisdiction. When an order is passed in exercise of powers under Rule 9 of Order 9, such an order is appealable under Order 43(1) (c). But in case the order resulting in rejection of application for restoration or order of dismissal of the suit was void ab initio, without jurisdiction, capricious, arbitrary or derogatory to the fundamental rules of administration of justice, such order was subject to revisional jurisdiction of the High Court, provided that no appeal was preferred against the same. This view finds ample support from the authorities listed as 1986 CLC (SC AJK)
1320, an unreported case (Muhammad Yasin v. Jan Muhammad and others) decided by the Supreme Court of Azad Jammu and Kashmir, on April 1, 1989, Motichand's case (AIR 1952 Bhopal 33), K.Suryanarayana Coru's case (AIR 1923 Madras 177), Durga Kanta Sarma's case (AIR 1918 Calcutta 330) and Chotey Miyan Abdul Shakur's case (AIR 1931 Allahabad 453).
10. In view of the provisions of Order 17, rule 2, an order passed, not within the scheme of Order 9, but in another suitable fashion, the order was open to revision. Thus, in both cases when the order, on account of absence of plaintiff resulting in dismissal of suit for want of prosecution, was passed in the manner described under Rule 4 of Order 9, or otherwise as provided under Rule 2 of Order 17, It was open to revision.
11. Another essential condition for invoking the provisions of rule 2 of Order 17 is that the proceedings must have been adjourned in the suit for consideration of the questions relating to the suit, to enable the Judge to come to an adjudication of the issues or controversy. The use of term "hearing of the suit" in the scheme of provisions of rule 2 refers to stages of the proceedings pertaining to taking of evidence; hearing of arguments; settlement of issues, resulting in final disposal of the case. Where there is sufficient material on record to dispose of the controversy conclusively despite non-performance of an act, including production of evidence or attendance of the witnesses, by any one of the parties to the suit, the provisions of rule 3 instead of rule 2 of Order 17, C.P.C. Shall be enforceable.
12. The order passed by the learned Additional Sub-Judge on May 10, 1992 does not contain reference to any provisions of law so as to hold the disposal of the suit under the provisions of Order 9 or Order 17, rule 2, C.P.C.It is a very brief order. It reflects that none of the parties appeared when the suit was called on for hearing, as such it was dismissed. Thus, confining to the substance of the impugned order, suffice it to say that it is covered by the provisions of Order 9, rule 3 and not by Order -17, rule 2 of the Code. In such situation, the remedy to seek restoration of suit by an application was available to the plaintiffs. The order of dismissal of application for restoration was, therefore, open to revision and not an appeal. This disposes of the objection of the learned Counsel for the parties.
13. The application for restoration was moved on May 23, 1992. It was within time. The learned Additional Sub-Judge truned down the application as, in view of the Court, the plaintiffs failed to satisfy the Court by showing sufficient cause for their absence on the relevant date. The learned Additional Sub-Judge gave details of the procedure adhered by the Court in disposal of the cases where parties or either of them failed to appear. The Court has also dealt, in detail, with the alleged explanation furnished by Arshad Mahmood Mir, one of the plaintiffs and arrived at the conclusion that the explanation was not satisfactory. The finding of the lower Court has been assailed by the learned Counsel on the ground of failure .Of the trial Court to allow an opportunity to the plaintiff to substantiate the explanation for the absence to prosecute the suit. It was further contended that the affidavit furnished by one of the plaintiffs was also not considered by the lower Court.
14. It was rightly pointed out that the learned Additional Sub-Judge passed the impugned order under an influence of the fact of presentation of the application on May 23 instead of May 10, 1992 when it was drafted. The Court has also ignored the importance of the affidavit and dismissed the application in limine, without providing an opportunity for production of evidence in support of the application. The petitioners, therefore, genuinely felt aggrieved for having been deprived of a valuable right, to substantiate the explanation for absence of the plaintiffs or their Counsel, on the date of dismissal of suit. The impugned order, therefore, cannot be sustained.
15. In view of the reasons listed above, it is deemed expedient to set aside the order, to enable the petitioners to support their explanation given in their application for restoration of the suit, by adducing evidence. The petition is, therefore, granted. The order of dismissal of the application for restoration of the suit is set aside. The parties are directed to appear before the trial Court on December 30, 1992. On that day, the petitioners shall lead their entire evidence in support of their application.